As California's housing crisis has worsened, California has developed a three-part legal solution for addressing the crisis:
Every eight years, the state assesses the housing deficit and assigns housing production goals to each city and county through the Regional Housing Needs Assessment (RHNA) process. Localities must use land use policy to facilitate development of their assigned housing goals.
After the RHNA planning process, the Housing Accountability Act requires localities to stick to their plans by assuring that they approve zoning-compliant housing. Other rules provide streamlining or guaranteed approval for certain types of housing, such as accessory dwelling units.
Localities are required to provide annual reports on the success of their housing policies in spurring the development of housing for families at all income levels. Cities and counties that do not facilitate enough development to meet their housing goals are subject to stiff penalties.
Plan: RHNA and the Housing Element Law
At regular intervals, California's Department of Housing and Community Development (HCD) determines the state’s housing deficit on a region-by-region basis. This is called the Regional Housing Needs Allocation (RHNA). HCD creates separate RHNA amounts for housing at different levels of affordability. Once they are established by HCD, regional groups of governments assign the RHNA amounts to individual cities.
Cities are then tasked with developing an action plan (called a “Housing Element”) to meet their RHNA goals. The Housing Element must provide a detailed inventory of the sites available for development, along with a plan for facilitating development on those sites. If necessary, cities must alter zoning and land use rules to permit development of enough housing. Cities are also required to assess the need for housing for those with special needs, such as supportive housing, housing accessible to those with disabilities, and senior housing.
For more information on RHNA and the Housing Element process, check out the Public Interest Law Project's extensive manual on the subject.
Approve: Housing Accountability & ADUs
The Housing Accountability Act
The RHNA and Housing Element process would be meaningless if localities were allowed to disregard their own plans and reject zoning-compliant projects—for example, when faced with public opposition to a particular development application. The Housing Accountability Act (HAA) keeps cities on track by requiring them to approve most zoning-compliant housing development projects.
The HAA first became law in the 1980s, but has been significantly expanded in recent years. The law generally requires a city to approve a housing development project unless the project does not comply with objective zoning standards in place at the time of the application. The law's focus on objective factors is critical, because it prevents cities from applying arbitrary or subjective standards as a pretext for rejecting a zoning-compliant project. The law requires cities to err on the side of approving a project if the evidence “would allow a reasonable person to conclude” that the project met the relevant standards. That means that, in order to reject a zoning-compliant project, a city must show that no reasonable person could find that the project was out of compliance with zoning.
The law also includes strict timing requirements that prevent cities from unreasonably delaying projects. Cities are required to make a written determination about whether a project complies with zoning standards within 30 to 60 days from the date of the application. If a city misses this deadline, the project is deemed to be compliant.
For housing developments intended to provide units affordable to lower-income families, there are even more significant limits. Cities must approve such a project without regard for whether it meets the objective zoning standards mentioned above, unless the jurisdiction has already met its RHNA goals in all of the relevant income categories for the current planning period, or one of a small number of narrow exceptions applies. Cities are also not permitted to condition such a project’s approval in a way that makes it infeasible to develop affordable housing—for example, by requiring the use of unnecessarily expensive construction materials or techniques.
In recent years, in response to the worsening housing crisis, the Legislature has made it much more risky for cities to violate the HAA. Today, pro-housing organizations like Californians for Homeownership are automatically entitled to sue to enforce the law and to recover their attorneys' fees if successful. The law also includes special litigation procedures that speed the process and make the lawsuit both costly and difficult to win for a non-compliant city. In certain cases when a city has willfully violated the law, a court will impose fines that start at $10,000 per proposed housing unit.
Accessory Dwelling Units
An accessory dwelling units (ADU) or 'in-law unit' is a housing unit built in or on the same lot as an existing single-family home, or through the conversion of an accessory structure like a garage. Because ADUs have the potential to provide a significant amount of additional housing at a relatively low cost, they provide an important tool for addressing the housing crisis. ADUs are also often cited by cities as sources for affordable housing development sites during the RHNA and Housing Element planning process.
In 2016 and 2017, the California Legislature passed a series of reforms that require cities to permit ADUs on most single-family lots. In 2019, following widespread obstruction and non-compliance by California's cities, the Legislature again overhauled state ADU law. The new law creates uniform statewide rules for the approval of ADUs, allowing cities to adopt very limited local ADU standards.
To learn more about the new ADU laws, click here.
Assess: SB 35 Streamlining
In 2017, the California Legislature added a key new tool for addressing the housing crisis: SB 35.
While the HAA assesses whether cities are following their own plans for solving the housing crisis, SB 35 assess whether those plans have been successful in actually spurring the development of housing for families at all income levels. SB 35 penalizes localities that have not met their RHNA goals by eliminating their authority to conduct normal planning review for qualifying housing development projects.
Qualifying projects must set-aside a portion of their units as affordable housing, agree to certain labor-related rules, and comply with a number of other requirements. SB 35-eligible projects must be approved within a short period of time and without discretionary review or a hearing process. And perhaps most importantly, these projects are exempt from review under the California Environmental Quality Act (CEQA), which is often misused to further anti-housing policies that contribute to environmental decline.